44 Cal. 65 | Cal. | 1872
The argument on the rehearing in this cause has convinced me that the judgment ought to be reversed. The eighth instruction, given at the instance of the prosecution, was clearly erroneous. In defining the right of self-defense it tells the jury that this right “cannot be exercised in any case, or to any extent not necessary. The party making the defense is permitted to use no instrument and no power beyond what will prove simply effectual.” This definition excludes all that class of cases in which the act imputed to the accused was apparently one of necessary self-defense, though as it afterward appeared, he was, in fact, ill no danger of suffering a bodily injury. If a gun be pointed at one in a threatening manner, under such circumstances as to induce a reasonable belief that it is loaded and will be discharged and thereby produce death or inflict a great bodily injury on the person threatened, he will be justified in using whatever force may be necessary to avert the apparent danger, though it may afterward appear that the gun was not loaded, and that he was in no danger whatever. In a subsequent portion
In summing up the cause the defendant’s counsel read to the jury extracts from several reported cases, on which he commented, and the facts of which he compared with those of the case at bar, stating at the time that he read these extracts to illustrate his argument. Ho objection to this course was made at the time; but after the argument closed the Court stated, in the presence and hearing of the jury, “that such course was improper, and would not have been permitted if it had been objected to; that it was calculated to and might mislead the jury; and stated, at the same time, that the written instructions were the only guide on questions of law for the jury in this case.” It further appears, from the bill of exceptions, that the defendant’s counsel “argued the case fairly to the jury, and did not attempt or offer to mislead them as to the law of the case, or as to their duty to accept and be bound by the instructions or charge of the Court, and was guilty of no improper conduct, unless the matters hereinbefore stated constituted improper conduct.” In this State, it is so well settled as no longer to be open to debate, that it is the duty of the jury in a criminal case to take the law from the Court. The -counsel for the defendant not only at the trial admitted this to be the rule, as appears from the bill of exceptions, but concedes it in argument here. He insists, however, that he did not contravene this rule, in reading to the jury, in illustration of his argument, reported cases similar in some points to the case at bar; and claims that he was entitled to do this in order to enable the jury the better to apply the law, as expounded by the Court to the facts of the case. As a general rule, the practice of allowing counsel, in either a civil or criminal action, to read law to the jury, is objectionable, and ought not to be tolerated. Its usual effect is to confuse rather than
Judgment reversed, and cause remanded for a new trial.